Virginia Supreme Court tosses $17.5 million asbestos verdict

High court: Judge should have allowed evidence of shipyard's knowledge about asbestos dangers

NEWPORT NEWS — The Virginia Supreme Court has reversed a $17.5 million verdict against ExxonMobil in an asbestos case, saying a trial judge improperly excluded evidence that Newport News Shipbuilding knew of the dangers of breathing the microscopic asbestos fibers.

In a 5-2 ruling, the state's highest court ruled that a jury in Newport News Circuit Court might have rendered a different verdict against the oil giant if Circuit Judge Timothy S. Fisher had allowed evidence about the shipyard's knowledge about asbestos.

The court remanded the case back to Newport News for a new trial.

"We ... hold that the trial court erred in refusing to admit evidence of the Shipyard's knowledge of the dangers of asbestos exposure and its procedures regarding precautions to be taken around asbestos," the Virginia Supreme Court wrote in a 28-page ruling.

Rubert "Bert" Minton, of Isle of Wight County, was a repair supervisor on commercial vessels at Newport News Shipbuilding between 1966 and 1977, and previously worked there for seven years as a shipfitter in new construction.

During his time as supervisor, Minton worked on 17 Exxon commercial oil tankers out of some 200 vessels repaired during that time. Decades later, he came down with mesothelioma, an asbestos-related form of cancer.

He died in August 2012, or 17 months after the March 2011 trial.

Because of provisions of workman's compensation law, the shipyard holds immunity from asbestos cases brought by former yard workers. Still, Exxon sought to introduce evidence to bolster its argument that the shipyard, not Exxon, was mostly to blame for Minton's cancer.

Fisher, however, blocked Exxon from doing so.

Minton's lawyer, Bobby Hatten with the Newport News firm of Patten, Wornom, Hatten and Diamonstein, said his firm will challenge the high court's ruling — in a motion for reconsideration, and, if necessary, in an appeal to the U.S. Supreme Court.

"There are a number of legal authorities that the court has not had an opportunity to consider," said Hatten, calling the shipyard's knowledge "totally irrelevant" to Exxon's liability.

The first trial in March 2011 took three weeks. But if the state Supreme Court's ruling ultimately stands, Hatten said his firm would likely try the case again. "We will cross that bridge if we have to," he said.

A spokesman for SeaRiver Maritime, an Exxon subsidiary, declined Monday to offer a reaction to the court's ruling.

In its ruling, the state Supreme Court ruled that the evidence in the case against Exxon was sufficient for a "reasonable jury" to conclude the oil giant bore culpability for Minton's asbestos exposure. There was clear evidence at trial, the court said, that Exxon knew about asbestos dangers for decades, but didn't act to protect yard workers.

Still, the court ruled that the shipyard "is presumed to have a higher level of expertise" than Exxon in protecting workers. "We hold ... that evidence tending to show the Shipyard's knowledge of the danger and its ability and intent to remedy the danger is relevant" in determining whether or not Exxon had a duty to protect Minton, the court said.